TaxTMI 
TaxTMI 
2015 (8) TMI 1579
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....nts Officer, on Officiating Basis in Gujarat Circle, was prosecuted in ACB Case No.3/2006. Learned Special Judge and Presiding Officer of Fast Track Court, Vadodara, acquitted him, by a detailed judgment, dated 31.03.2008. In the mean while, BSNL Corporate Office, has issued Executive Promotion Policy (EPP) on 18.01.2007. As per the policy, all the Executive Officers, like the 1st respondent, were entitled to first time bound promotion, with effect from 01.10.2004 and second time bound promotion on 01.10.2009. Time bound promotion would be based on performance, during the period of service to the next IDA scale, upon completion of five years of service from the date of grant of 1st time bound promotion. Due to the pendency of the Criminal case, the Screening Committee did not recommend the case of the 1st respondent for the first time bound promotion. Though he was acquitted by the learned Special Judge and Presiding Officer of Fast Track Court, Vadodara, in view of the appeal, preferred by the State of Gujarat, he was not given promotion. In the mean while, his juniors were given first and second time bound promotion. Representations were given by the 1st respondent. However, he w....
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.... that the criminal proceedings against the applicant has ended. Therefore, we are of the view that the applicant is eligible for consideration of both 1st and 2nd time bound upgradations. It is also on record that though the respondents have taken the stand that they have to wait for the outcome of criminal appeal for issuing the financial upgradation under EPP, they have nevertheless granted the applicant adhoc promotion to the post of CAO on 28.03.2009 and they have also granted regular promotion to the post of CAO w.e.f. 31.12.2009. The respondents cannot take different stand in respect of time bound upgradations. 12. Since the judicial proceeding against the applicant having ended in acquittal on merit we direct the respondent to place the case of the applicant for consideration by the Screening Committee to decide the eligibility of the applicant of 1st and 2nd time bound upgradation under EPP of BSNL. The above exercise should be completed within a period of three months from the date of receipt of a copy of order in this case." 6. Though Mr. S. Udayakumar, learned Senior Counsel for the petitioner contended that the appeal is a continuation of the proceedings and vigilanc....
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.... no vigilance or departmental case, pending against him. In his representation, the 1st respondent has also pointed out that his juniors have been given time bound promotion. 10. Objections of the writ petitioner, for denying the time bound promotion to the 1st respondent, before the Central Administrative Tribunal, on the grounds that the first time bound promotion would be from 01.10.2004, subject to the officer having (i) prescribed Bench Mark of APAR for the last four years, ie., from 01.10.2000 to 30.09.2004 (ii) the officer should have touched the minimum of the next IDA Scale and (iii) Vigilance clearance for the prescribed period, have been overruled. Before this Court, the same objections are reiterated, contending inter alia, that appeal is a continuation of proceedings. 11. Admittedly, Criminal proceedings in ACB Case No.3/2006 has ended up in acquittal on 31.03.2008, by the learned Special Judge and Presiding Officer of Fast Track Court, Vadodara. On the contention of the writ petitioner that filing of an appeal and pendency in the High Court, is a continuation of the proceedings, disentitling the 1st respondent to receive all consequential benefits, this Court deems ....
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....n as a member of the Service or is likely embarrass him in the discharge of his duties or involves moral turpitude. Defining the words "inquiry" and "investigation, under Sections 2(g) and 2(h) of the Code of Criminal Procedure and considering Rule 3 of abovesaid Rules, a Hon'ble Division Bench of Calcutta High Court, at Paragraph 10, held as follows: "Continuation of the proceedings must relate to investigation, enquiry or trial and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The same being continuing in the instant case is misconceived, only on the ground that an appeal there against is pending. If respondent 1 is convicted by the appeal Court for commission of a criminal offence, sub-rule (4) of rule 3 of the said Rules would be attracted. Keeping in view the fact that different subrules of rule 3 operate in different fields, we are of the opinion that sub-rule (3) of rule 3 be held to be operative only in the case namely, when an investigation, enquiry or trial remains pending and not or when the employee person is acquitted. The situations obtaining under different sub-rule being absolutely different, in our opinion, ....
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....e with the view taken by the learned single Judge." 16. A Hon'ble Division Bench of Andhra Pradesh in Chief Commissioner of Land Administration, A.P., Hyderabad v. R.S. Ramakrishna Rao reported in 2010 (2) ALD 773 (DB), considered a case, as to whether, the petitioners therein can withhold the payment of retirement benefits, after acquittal, stating that the criminal appeals were pending. The Central Administrative Tribunal allowed the Original Application, directing the respondents therein to pay full pension, gratuity and other retiral benefits to the applicants therein holding that pendency of criminal appeal, against the order of acquittal, is of no consequence in view of Rules 9 and 52 of the A.P. Revised Pension Rules, 1980 (for short "the Pension Rules"). In that case, it was the contention of the State that against the orders of acquittal, criminal appeals have been filed before the Andhra Pradesh High Court and that the same were pending and under Rule 9 of the Pension Rules, the Government is empowered to withhold pension or gratuity, either in full or in part when any departmental or judicial proceedings, are pending against Government servant and that the petitione....
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....e paid by the Audit Officer/Head of Office during the period commencing from the date of retirement to the date on which, upon the conclusion of departmental or Judicial proceedings, final orders are passed by the competent authority. (c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders: Provided that where departmental proceedings have been instituted under Rule 9 of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, for imposing any of the penalties specified in clauses (i) (ii) and (iv) of Rule 9 of the said rules, except in the cases falling under sub-rule (2) of Rule 22 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant." 17. A perusal of Rule 52 (1) (b) of the Pension Rules makes it clear that the Government employees, against whom the departmental or judicial proceedings are pending, are entitled for provisional pension from the date of their retirement till the final orders are passed either in the departmental or judicial proceedings. 18. As per Rule 52 (1) (c) of the Pension Rules, the Government ....
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...." 21. If the appeal is not in continuation of original criminal proceedings, the order of acquittal is a final order within the ambit of Rule 52 of the Pension Rules, referred to above. After the orders of acquittal passed by the criminal court, as already stated above, there is no power for the Government to withhold pension or retirement benefits. The said benefits, therefore, are liable to be paid immediately after acquittal order. 22. If the appeal or revision proceedings are in continuation of the criminal proceedings, there will be no end for the litigation and the employees, who have been acquitted honourably, shall not get retirement benefits till conclusion of all appeals, revisions, special leave petitions etc. Appeal against acquittal, not being continuation of original criminal proceedings, Rule 52 as above, will not be available to Government for withholding retirement benefits." At Paragraph 24, the Hon'ble Division Bench has referred to a decision made in W.P.No.8000 of 2009 and batch, dated 17.11.2009, wherein, the Hon'ble Division Bench held that, "when a Government employee suffers conviction and he is dismissed from service under Rule 25 of the Sta....
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....ency of judicial proceeding as the initial presumption of innocence gets re-enforced by the orders of acquittal. The contention, therefore, put forth by the respondents that the filing of revision against the judgment dated 12.12.2000 would tantamount to the pendency of judicial proceeding does not reason with the provisions as they stand under law. In the considered opinion of this Court, after acquittal, which lead to an affirmation of the innocence of the accused, an appeal or revision, as the case may be, being not a continuation of trial, will not amount to a pendency of judicial proceedings." 18. In Balak Singh Thakur v. State of Madhya Pradesh reported in 2014 SCC Online MP 1036, the claim of the petitioner therein for settlement of wages of suspension period, was rejected on the ground that against the order of acquittal recorded in a case, under the Prevention of Corruption Act, an appeal has been preferred in the High Court. Before the Madhya Pradesh High Court, it was contended that having been acquitted in a criminal case, pendency of criminal appeal, cannot be put against the claim of the petitioner therein for wages. The respondents therein contended that since an ap....